Grounds for Judicial separation are same as given in section 13(1), which are applicable for divorce. A wife has the grounds given in section 13(2) as well. They are:-
Section 13 (1) at fault Grounds
(A) ADULTERY :-
Voluntary intercourse with third person is called adultery. It does not include rape.
Vira Reddy vs Kistamma 1969 – One single act of adultery is enough for divorce or judicial separation. Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high probability is required.
Sanjukta vs Laxmi 1981 – Circumstantial evidence is sufficient.
(B) CRUELTY :-
Legal concept of cruelty has varied from time to time, place to place, and situation to situation. In early law, intention was considered an essential element of cruelty but in modern law it is not so. The intention of the law is to protect the innocent party from any harm -physical or mental. Scolding or nagging has also been considered as cruelty.
DEFINITION :-
There is no precise definition of cruelty because the term is so wide. Several situations and cases over past 100 years have shown that cruelty can be mental or physical. In the case of Dastane vs Dastane 1970 Bom, it was held that cruelty could be through words, gestures, or even by mere silence.
A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it was held that any conduct that poses a danger to life, limb, or health – physical or mental, or causes reasonable apprehension of such danger, is cruelty.
Earlier, the petitioner had to show that the act of the respondent caused reasonable apprehension of danger. Thus, in the case of Sayal vs Sarla 1961 Punjab, when wife administered love-potion to the husband, causing his hospitalization, it was held to be cruelty even though she did not mean to hurt her husband because it caused reasonable apprehension of danger. However, now it is not required. The Clause merely says, “if the respondent has treated the petitioner with cruelty In the case of GVN Kameshwara Rao vs G Jalili 2002, SC held that it is not necessary that the act has caused a reasonable apprehension in the mind of petitioner. The emphasis will be on the act or conduct constituting cruelty.It further held that social status of the parties, their education must be considered while determining whether the act constitutes cruelty or not. Thus, what amounts to cruelty in one case may not amount to cruelty in another.
Intention to be cruel is not material:-
Earlier intention was necessary but now it is not so. In the case of Jamieson vs Jamieson 1952, House Of Lords observed that unintentional acts may also amount to cruelty. In Williams vs Williams 1963Allahbad, the necessity of intention in cruelty was finally rejected in India. In this case husband was insane and constantly accused the wife of adultery. This was cruelty without intention.
Thus, in the case of Bhagwat vs Bhagwat 1976 Bom, when husband tried to strangulate wife’s brother and he younger son in a fit of insanity, he was held to be cruel. Temporary insanity or schizophrenia cannot be a defense against the plea of cruelty.
Cruelty need not only be against the Petitioner :-
In Bhagwat vs Bhagwat, cruelty against his step daughter was held as cruelty against wife.
The act or omission need not only be of the respondent :-
Since most women have to live in husband’s joint family, they have to put up with their actions also. In the case of Shyam Sundar vs Santa Devi 1962, the wife was ill treated by the in-laws and husband stood their idly without caring for wife. This was held as cruelty.
However, in the case of Gopal vs Mithilesh 1979 Allahbad, husband’s stand of neutrality regarding wife and mother and his inaction about his mother’s nagging of his wife was not considered cruelty because it is normal wear and tear of a married life.
Cruelty of Child :-
Generally, cruelty by child towards one parent does not amount to cruelty. However, in the case of Savitri vs Mulchand 1987 Delhi, mother and son acted in concert and the son tortured the father by squeezing his testicles to force him to do what they wanted him to do, was considered cruelty against the wife.
Types of cruelty :- Physical and Mental
Physical Cruelty :- Injury to body, limb, or health, or apprehension of the same. In the case of Kaushalya vs Wisakhiram 1961 Punj, husband beat his wife so much so that she had to lodge police complaint even though injury was not serious. It was held that serious injury is not required.
Mental Cruelty :- In Bhagat VS Bhagat 1994 SC held d that that a conduct that causes such a mental pain and suffering that makes it impossible to live with that person is mental cruelty. Mental cruelty must be such that it cannot reasonably be expected to live together. This has to be judged on the circumstances of the case.
In the case of N Sreepadchanda vs Vasantha 1970 Mysore, wife hurled abuses at the husband and quarreled over trivial matters so much so that he became a laughing stock in the locality. This was held to be mental cruelty against the wife.
In Saptami vs Jagdish 1970 Calcutta, false accusations of adultery were held to be mental cruelty.
Yashodabai vs Krishnamurthi 1992 – Mere domestic quarrels with mother in law is not cruelty.
Shobha vs Madhukar 1988 SC – Constant demand for dowry is cruelty.
In the case of Jyotishchandra vs Meera 1970, husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. It was physical as well as mental cruelty.
(c) DESERTION :- There are 3 Types of desertion-
Actual Desertion,
Constructive Desertion,
Willful neglect
Actual Desertion – factum of desertion, animus deserdendi, without reasonable cause, without consent,2 yrs must have passed.
Lachman vs Meena – 1964 – Wife was from rich family. She was required to live in joint family of husband. She went back to parents. Kept making fake promises of return but never did. Held desertion. Jagannath vs Krishna – Wife became brahma kumari and refused to perform marital obligations. Held desertion. Held DESERTION.
Bipin Chandra vs Prabhavati SC 1957 – Husband went to England. Husband’s friend came to house in India. Husband came back. Alleged affair, which was refuted by wife. Wife went to her parents for attending marriage. Prevented her from coming back. Held no desertion by wife.
Sunil Kumar vs Usha 1994 – Wife left due to unpalatable atmosphere of torture in husband’s house Held not desertion.
Constructive Desertion – If a spouse creates an environment that forces the other spouse to leave, the spouse who created such an environment is considered deserter.
Jyotishchandra vs Meera 1970 – Husband was not interested in wife, he was cold, indifferent, sexually abnormal and perverse. Went to England. Then came back and sent wife to England for PhD. When wife came back, did not treat her well. Abused her and his inlaws physically. Wife was forced to live separately. Held desertion by husband.
willful Neglect – If a spouse intentionally neglects the other spouse without physically deserting, it is still desertion.
Balihar vs Dhir Das 1979 – Refusing to perform basic marital obligations such as denial of company or intercourse or denial to provide maintenance is willful neglect.
Reasonable Cause :-
1. matrimonial relief. ( ground for void voidable mariage or grounds for. maintenance under sec. 18 of HAMA )
2. If spouse is guilty of a matrimonial misconduct that is not enough for matrimonial relief but still weighty and grave.
3. If a spouse is guilty of an act, omission, or conduct due to which it is not possible to live with that spouse. Chandra vs Saroj 1975 – Forcing a brahmin wife to eat meat.
Without Consent :–
Bhagwati vs Sadhu Ram 1961 – Wife was living separately under a maintenance agreement. Held not desertion.
Other Grounds:-
4) Section 13 (ii) : ceased to be a Hindu.
5) Section 13 (iii) unsound mind. – includes mental disorders such a incomplete development of brain or psychopathic disorder or schizophrenia
6. Section 13 (iv) virulent and and incurable Leprosy
7. Section 13 (v) communicable venereal disease
8. Section 13 (vi) renounced the world.
9.Section 13 (vii) presumed dead – not heard of in 7 years.
10. Section 13 (1-A) Breakdown Theory
(i)no cohabitation for 1 yr after passing the decree of judicial separation.
(ii) no cohabitation for 1 yr after passing the decree of restitution of conjugal rights Effected by provisions in section 23.
11. Section 13(2) Additional grounds for wife
(1) Another wife of the husband is alive.
(2) Rape, sodomy, Bestiality.
(3) Wife was awarded maintenance under section 15 of HAM 1956 or under section 125 of CrPC and no cohabitation has occurred for 1 yr after the award.
(4) If wife was under 15 at the time of marriage and if she repudiates the marriage before 18.
Section 13-An Alternate relief in divorce proceedings – If the judge feels that sufficient grounds do not exist for divorce, he can grant judicial separation.
12. Section 13-B Divorce by mutual consent :- Divorce by mutual consent means that the case is not like usual ones wherein one party petitions against the other for divorce and the other party resists the same. Here both the parties make a joint petition to the court for divorce between them. They genuinely desire amicably for good. If divorce is not given life would their life d be get rid of each other and they part spoiled and it would result in moral degradation. If divorce by mutual consent is given the parties will not wash their dirty liner in public. There are unfounded objections against this type of divorce that consent of the unwilling party would be obtained by force, fraud or some other contrivance, and this is a divorce by collusion. But both these arguments and doubts are unfounded. Every collusion c no doubt by consent but every consent does is not mean collusion. Collusion is a secret agreement for a fraudulent purposent is a secret agreement by two or more persons to obtain an arm an unlawful object. Collusion is different from compulsion. Compulsion occurs when one party can dominate the will of the other. The Hindu Marriage Act now permits divorce by mutual consent under Section 13B. One may well say that from an unbreakable bondage under the Smritis, a Hindu Marriage has been transferred under the Hindu Marriage Act into a consensual union between one man and one woman. Everything static must drop and die and ideas of marriage anddivorce are no exception.